Barton v. Chellis , 45 N.H. 135 ( 1863 )

Bellows, J.

The only question in this case is, whether the accounts rendered by the plaintiff to the attaching creditor, or rather the officer making the attachments of the property in question, were sufficient.

It appears that at the time of the attachments, one being June 29, 1861, and the other, July 3d of the same year, the plaintiff held a mortgage of the articles named in the first count from Peter Barton, to secure the payment of sundry promissory notes made by the said Peter Barton and others, and one made by him alone; upon all of which, at the time of rendering the accounts there was due $1394.18 ; and that he also held another mortgage of the articles described in the second count, and dated June 27th, 1861, made by Martin A. Barton to secure the payment of a portion of the notes included in the condition of the mortgage of Peter Barton, and which were signed also by the said Martin A. Barton, and' upon which there was due at the time of rendering the account, the sum of $479.11, as stated in said account.

The articles in the'first count were attached as the property of Peter Barton, June 29th, 1861, and those in the second count as the property of Martin A. Barton, July 3d, 1861, and both on the same writ.

The mortgages were duly recorded prior to the attachments, and each contained a description of the notes respectively secured, giving the dates, amounts, names of the makers and payees, and when payable, and the kind of interest; in short, giving a full description of such notes, so that upon inspection of the mortgage of Martin A. Barton it. would be seen that the notes thereby secured were also included in the mortgage of Peter Barton. Under these circumstances we think that the accounts were sufficient. The amounts stated were due at the time, and the creditor would have no right to redeem either one alone without paying the full amount stated in the account.

It is true that the whole sum secured by both mortgages was less than the aggregate of the two accounts, and, upon the payment.of the sum actually due, both mortgages would be discharged; still,,, as. the account rendered upon each mortgage is true, and especially as the notes so secured were fully described in each mortgage, so that the- creditor in the exercise of reasonable diligence could not be misled; we- are of the opinion that neither account can be regarded as false; within the meaning of the statute. That statute is highly penal in its character and should not be extended by construction to cases not clearly within its provisions. Farr v. Dudley, 21 N. H. 380; Gilmore v. Gale, 33 N. H. 410; see also Belknap v. Wendell, 21 N. H. 184.

Both accounts are true, and we perceive no reason for requiring- a statement that some of the notes are secured by both mortgages, any more than a statement that the mortgagee held still other security for the same demands by mortgage or pledge; unless it may be the fact that the account is demanded in behalf of a creditor who has attached the property secured by both mortgages in the same process, and may be supposed desirous of paying the' amount due on both. But such a case, we think, was not contemplated by the statute and is not within its provisions, and we do not feel justified in giving it such a construction as to embrace it.

The act designed to be visited by this severe penalty is specifically the failure to render an account, or the rendering a false one, and does not include any other act, however fraudulent it may be. It is possible that by giving a notice of the attachment of the property in both mortgages, and demanding an account of the amount for which all was held, an account in accordance with the demand might have been necessary. But here the notices were separate and required an account of the amount due on each, and that was truly given.

We are the better satisfied with the result that the remedy of the creditor was ample without imposing upon the mortgagee the severe penalty of losing his whole security; and that was by discharging the debt seemed by the mortgage of Peter Barton, which would also have fully discharged the other. As both mortgages were recorded the creditor must be deemed to have had full knowledge of the true connection between them, and this constructive notice must have accorded with the fact, unless the creditor was grossly negligent. It would be unjust and severe, under these circumstances, to deprive the mortgagee of all security, and we think a fair construction of the statute does not require it.

It is urged that the creditor is charged by the record of themortgages, only with notice of the'fact of the mortgages, and not of the debt seemed ; but we think, as the law requires the entire mortgage to be recorded, the creditor must be deemed to have notice of the whole. Should the condition of the mortgage be omitted in the recording, we apprehend the omission would be fatal, and the same probably might be said in respect to the oath.

Judgment for Plaintiff.